Ramón Martínez Villareal v. United States, Case 11.753, Report No. 108/00, OEA/Ser.L/V/II.111 Doc. 20 rev. at 409 (2000).
REPORT
Nº 108/00
CASE 11.753
RAMÓN MARTINEZ VILLAREAL
UNITED STATES*
December 4, 2000
I. SUMMARY
1. On May 16, 1997,
the Inter-American Commission on Human Rights (the Commission)
received a petition from the Center for Justice and International Law (the
Petitioners) against the Government of the United States of America
(the "State" or United States). The petition was presented
on behalf of Mr. Ramón Martinez Villareal ("Mr. Martinez Villareal"
or "Martinez Villareal"), a Mexican national who is incarcerated
on death row in Florence Prison, in the State of Arizona. The petition and
subsequently information indicate that on April 27, 1983, Mr. Martinez Villareal
was convicted of two counts of first degree murder and one count of first
degree burglary, and was sentenced to death on May 20, 1983 for his murder
convictions. The initial petition also stated that Mr. Martinez Villareal
was scheduled to be executed on May 21, 1997, although his execution has been
subsequently postponed on various occasions in connection with further domestic
proceedings and remains outstanding.
2. The Petitioners
have alleged that Mr. Martinez Villareal has exhausted domestic remedies in
relation to the claims raised before the Commission, or that he is not required
to exhaust domestic remedies, as provided under Article 37 of the Commission's
Regulations. Respecting the substance of their complaints, the Petitioners
claim that the State has violated Mr. Martinez Villareals rights under
Articles I, XVIII and XXVI of the American Declaration of the Rights and Duties
of Man (hereinafter the "American Declaration"), because his attorney
failed to provide him with effective representation, and because Mr. Martinez
Villareal suffers from mental illness and was therefore incompetent to stand
trial or to be sentenced to death, and remains incompetent to be executed.
The Petitioners have also alleged that the State is responsible for further
violations of Mr. Martinez Villareal's rights under Articles I, XVIII and
XXVI of the American Declaration because of the States failure to comply
with its obligations under Article 36 of the Vienna Convention on Consular
Relations. In addition, the Petitioners have alleged further violations of
Mr. Martinez Villareal's rights under Articles XVIII and XXVI as a consequence
of the delay in the rendering of a final decision in his case. Finally, the
Petitioners claim violations of Mr. Martinez Villareal's right to equality
before the law under Article II of the American Declaration because of the
manner in which the death penalty is administered by states in the United
States.
3. As set forth
in this Report, having examined the information provided by the parties and
their contentions on the question of admissibility, and without prejudging
the merits of the matter, the Commission decided to admit the present petition,
and continue with the analysis of the merits of the case.
II. PROCEEDINGS BEFORE
THE COMMISSION
4. Upon receipt
of the Petitioners' petition, the Commission, by note dated May 19, 1997,
advised the State that the Commission had been informed of Mr. Martinez Villareal's
pending May 21, 1997 execution, and requested that the State stay the execution
for humanitarian reasons until the Commission had an opportunity to investigate
the matter, or alternatively to commute Mr. Martinez Villareal's death sentence
to one of life imprisonment.
5. Subsequently,
on May 20, 1997, the Commission decided to open Case No. 11.753 and transmitted
the pertinent parts of the petition to the Government of the United States
by means of a note of the same date. The Commission requested the State's
observations within 90 days as established by the Commission's Regulations.
Also by note dated May 20, 1997, the Commission informed the Petitioners that
a case had been opened in respect of their petition, that the State had been
advised of the situation set forth in their communication, and that the Commission
requested that the State stay Mr. Martinez Villareal's execution until it
had the opportunity to investigate the allegations in the petition, or alternatively
commute his death sentence.
6. By communication
dated July 8, 1997, the Petitioners delivered to the Commission further information
respecting Mr. Martinez Villareal's situation. In a note dated July 22, 1997,
the Commission transmitted the pertinent parts of the Petitioners' July 8,
1997 observations to the State, with a response requested within 90 days.
7. In a note dated
December 18, 1997, the State responded to the Petitioners' July 8, 1997 observations,
in which the State argued that Mr. Martinez Villareal had failed to exhaust
domestic remedies, and accordingly that the Commission should decline to consider
the case. The State also provided observations on the substance of the Petitioners'
allegations. The pertinent parts of the State's response were transmitted
to the Petitioners by note dated January 7, 1998, with observations requested
within 30 days. By communication dated March 19, 1998, the Petitioners requested
that the deadline for their observations be extended until March 29, 1998.
8. By communication
dated March 30, 1998, the Petitioners delivered to the Commission observations
respecting the State's December 18, 1997 communication. In a note dated March
31, 1998, the Commission transmitted the pertinent parts of the Petitioners'
observations to the State, with a response requested within 30 days.
9. The State responded
by note dated September 8, 1998, in which it provided additional information
on the admissibility of Mr. Martinez Villareal's case. By communication dated
November 25, 1998, the Commission transmitted the pertinent parts of the State's
observations to the Petitioners, with a response requested within 30 days.
10.
In a communication dated January 20, 1999, the Petitioners delivered
to the Commission a response to the State's September 8, 1998 observations.
By note dated February 5, 1999, the Commission transmitted the pertinent parts
of the Petitioners' January 20, 1999 observations to the State, with a response
requested within 30 days.
11.
By communication dated October 6, 1999, the State submitted to the
Commission observations on the Petitioners' January 20, 1999 response, in
which the State reiterated that Mr. Martinez Villareal had failed to exhaust
his domestic remedies. In a note dated October 20, 1999, the Commission transmitted
the pertinent parts of the State's observations to the Petitioners, with a
response requested within 30 days.
12.
On November 19, 1999, the Petitioners delivered observations on the
State's October 6, 1999 response, in which they reiterated their claim that
Mr. Martinez Villareal's petition was admissible, and requested that the Commission
adopt a formal report on admissibility expeditiously. The Commission transmitted
the Petitioners' observations to the State in a letter dated January 31, 2000,
and requested a response within 30 days.
13.
In a note dated August 14, 2000 to the Petitioners, the Commission
requested that the Petitioners provide the Commission with information concerning
certain aspects of Mr. Martinez Villareal's case, with a response requested
within 30 days. The Commission subsequently reiterated its August 14, 2000
request for information in a further note to the Petitioners dated October
24, 2000. By letter dated November 13, 2000, the Petitioners responded to
the Commission's previous requests for information.
III.
POSITIONS OF THE PARTIES
A.
Position of the Petitioners
14.
In relation to the admissibility of their complaint, the Petitioners
claim that Mr. Martinez Villareal has exhausted his domestic remedies in the
United States under Article 37(1) of the Commission's Regulations. The Petitioners
also contend that the State has failed to demonstrate pursuant to Article
37(3) of the Commission's Regulations that remedies under domestic law have
not previously been exhausted, and that Mr. Martinez Villareal's allegations
fall within one or more of the exemptions to the exhaustion of domestic remedies
under Article 37(2) of the Commission's Regulations.
15.
In their initial petition and subsequent observations, the Petitioners
have provided information concerning the procedural history of Mr. Martinez
Villareal's criminal proceedings. In this connection, they indicate that Mr.
Martinez Villareal was found guilty by the Santa Cruz Superior Court of Arizona
of two counts of first degree murder and one count of first degree burglary
in April 1983, and was sentenced to death for the murder convictions on May
20, 1983. The Arizona Supreme Court subsequently dismissed Mr. Martinez Villareal's
appeals from his conviction and sentence.
16.
The Petitioners also indicate that Mr. Martinez Villareal brought several
petitions for post-conviction relief in the Arizona state courts. His first
such petition was summarily denied by the Santa Cruz Superior Court in April
1, 1986, his second was denied in June 1988, and his third was denied in August
1991. The Arizona Supreme Court denied all petitions for review of these decisions,
in orders entered on June 9, 1986, February 9, 1989 and April 8, 1992.
17.
In addition, according to the Petitioners, Mr. Martinez Villareal brought
several petitions for writs of habeas corpus in the U.S. federal courts. Mr.
Martinez Villareal's first three such applications were denied by the U.S.
District Court for the District of Arizona in June 1986, the third such petition
being the first occasion on which Mr. Martinez Villareal alleged ineffective
assistance of prior counsel.
18.
The Petitioners also contend that Mr. Martinez Villareal brought a
fourth federal petition in U.S. District Court for a writ of habeas corpus
in March 1993, which was the first occasion on which Mr. Martinez Villareal
alleged that he did not have the mental capacity to appreciate the nature
of his sentence. In addressing this petition, the District Court issued a
writ of habeas corpus and vacated Mr. Martinez Villareal's death sentence,
on the basis that Mr. Martinez Villareal did not receive effective assistance
of counsel. On appeal, however, the U.S. Court of Appeals for the Ninth Circuit
in 1996 reversed the District Court's decision, ordering that the petition
for habeas corpus be denied due to procedural errors committed by Mr. Martinez
Villareal's attorneys during his first and second post-conviction proceedings.
19.
The Petitioners further indicate that a special hearing took place
in the Arizona Superior Court on April 6 and May 6 to May 8, 1997 respecting
Mr. Martinez Villareal's competence to be executed, and that the Court ultimately
found that Mr. Martinez Villareal suffered from mental illness, mental retardation,
and/or organic brain damage, but that he was competent to be executed. According
to the Petitioners, Mr. Martinez Villareal petitioned the Superior Court in
relation to this proceeding to allow him to obtain and admit the results of
a Magnetic Resonance Image (MRI) of his brain. The Petitioners claim that
an MRI is equivalent to an x-ray of soft tissue, in this case the brain, and
could conclusively show whether or not Mr. Martinez Villareal is suffering
from deterioration of the frontal lobe. The Petitioners allege that the Superior
Court denied Mr. Martinez Villareal's request and ruled that an MRI would
be inadmissible.
20.
A petition for special action was subsequently filed in the Arizona
Supreme Court to review the trial court's determination of competency, and
the Supreme Court held in a May 16, 1997 decision that the finding was correct,
although two concurring justices noted that "the evidence makes it clear
that defendant is mildly retarded and seriously mentally ill" and stated
that "this is a case which raises serious doubts about the propriety
of the death sentence."
21.
In addition, the Petitioners indicate that Mr. Martinez Villareal brought
a further petition for a writ of habeas corpus in the U.S. District Court
in May 1997 relating to the Arizona Supreme Courts determination on
his competency to be executed, and in this connection brought a motion in
District Court requesting the means to examine Mr. Martinez Villareal in preparation
for his petition. In disposing of his petition, the District Court expressed,
"serious concerns
as to whether Petitioner is presently capable
of understanding 1) that he is to be punished by execution, and 2) why he
is being punished", but nevertheless found that it did not have the jurisdiction
to consider Mr. Martinez Villareal's constitutional challenge.
22.
Mr. Martinez Villareal subsequently filed challenges to the District
Court's decision in the Ninth Circuit U.S. Court of Appeal. On June 23, 1997,
the Ninth Circuit ruled in favor of Mr. Martinez Villareal, and remanded his
case to the District Court for a hearing on his competency to be executed
claim. The state of Arizona sought review of the decision of the Ninth Circuit,
and in May 1998 the U.S. Supreme Court affirmed the Ninth Circuit's decision
on Mr. Martinez Villareal's ability to bring a successive habeas corpus petition.
The U.S. District Court for Arizona subsequently considered Mr. Martinez Villareal's
habeas application, and denied it in an August 6, 1999 decision. Mr. Martinez
Villareal appealed this determination to the Ninth Circuit Court of Appeals,
which on June 17, 2000 entered an order vacating the U.S. District Court's
decision and remanding the case to the District Court for further proceedings.
Subsequently, on October 30, 2000, the District Court entered an order dismissing
Mr. Martinez Villareal's petition for a writ of habeas corpus without prejudice.
23.
The Petitioners also indicate in their observations that on May 19,
1997, the Petitioner filed a Petition for Post-conviction Relief in the Santa
Cruz Superior Court, as well as a motion to Recall Mandate, Motion to Vacate
Prior Orders Denying Petitions for Review, and Motion for a Stay of Execution
in the Arizona Supreme Court. According to the Petitioners in their July 1997
observations, the motions were combined and procedural directions were issued
by the Supreme Court.
24.
In light of this procedural history, the Petitioners claim that the
five distinct violations alleged in their petition before the Commission are
admissible under Article 37 of the Commission's Regulations: the failure of
the State to provide notice of consular assistance under Article 36(1)(b)
of the Vienna Convention on Consular Relations;[1]
the failure of the State to provide and guarantee effective assistance of
counsel; the failure of the State to take into account Mr. Martinez Villareal's
mental competence at the guilt/innocence and penalty phases of his criminal
proceeding; the prohibition against executing Mr. Martinez Villareal due to
his mental incompetence; and the delay in Mr. Martinez Villareal's execution.
25.
With respect to the first alleged violation, the Petitioners have noted
that the State's position, as expressed in respect of the Request for Advisory
Opinion OC-16/99 before the Inter-American Court of Human Rights, has been
that Article 36 of the Vienna Convention on Consular Relations does not vest
a right in a detained foreign national. The Petitioners also claim that the
State has demonstrated through practice that it will not recognize such a
right, nor provide a remedy for its violation. Further, the Petitioners claim
that Mr. Martinez Villareal attempted to raise this claim before the domestic
courts as soon as he became aware of it, but that he was precluded from doing
so because the claim had not been raised during his trial or his initial appeal.
Accordingly, the Petitioners contend that Mr. Martinez Villareal has been
denied access to remedies under domestic law or has been prevented from exhausting
them as prescribed under Article 37(2) of the Commission's Regulations in
relation to the alleged violation of Article 36 of the Vienna Convention on
Consular Relations, and therefore that this aspect of their claim should be
considered admissible.
26.
In relation to the second alleged violation, the Petitioners claim
that once Mr. Martinez Villareal had obtained attorneys who could adequately
present his claims of ineffective assistance of counsel and the related underlying
claims of mental competence, his attempts to raise these issues were barred
by domestic courts on procedural grounds. In particular, the Petitioners indicate
that the Arizona Supreme Court rejected Mr. Martinez Villareal's effective
representation claims on the basis of procedural default, because the issue
had not been raised in his previous applications for post-conviction relief.
Further, the Ninth Circuit U.S. Court of Appeals subsequently endorsed this
"preclusion" finding in a subsequent habeas proceeding before it.
Hence, the Petitioners argue that the victim has been precluded from raising
his substantive due process claim, or the corollary claim of incompetence
as it relates to the guilt/innocence and sentencing phases of his proceeding,
that he has no available remedy, and therefore that the domestic legislation
of the state concerned does not afford due process of law for the protection
of these rights, as provided for under Article 37(2)(a) of the Commission's
Regulations.
27. With respect to the third alleged violation, the Petitioners contend, as with the second issue, that the Arizona Supreme Court would not entertain the issue of the Petitioners' mental capacity and its impact on the guilt/innocence and sentencing stages of Mr. Martinez Villareal's criminal proceeding by virtue of procedural default, and that the Ninth Circuit U.S. Court of Appeals subsequently deferred to this decision. Consequently, they argue that no available domestic avenues exist for Mr. Martinez Villareal to raise this issue, and therefore that their allegations in this regard are admissible.
28.
With respect to Mr. Martinez Villareal's competence to be executed,
the Petitioners claim that any pending domestic proceedings concern only this
issue and are not adequate to address the other issues raised before the Commission,
including his due process rights at the trial and sentencing phases of his
criminal proceedings. Further, the Petitioners claim that in the Arizona Supreme
Court proceeding on Mr. Martinez Villareal's competence to be executed, held
in April and May 1997, Mr. Martinez Villareal was precluded from obtaining
objective evidence of his mental illness in the form of a Magnetic Resonance
Imaging scan of his brain. Mr. Martinez Villareal's subsequent federal habeas
application challenging this proceeding was denied by the U.S. District Court.
While the Ninth Circuit U.S. Court of Appeals vacated the District Court's
decision on appeal and remanded the matter back to the District Court, on
October 30, 2000 the District Court entered an order dismissing Mr. Martinez
Villareal's petition for a writ of habeas corpus without prejudice.
29.
Finally, with regard to the issue of whether the delay in Mr. Martinez
Villareal's proceedings constitutes cruel, infamous or unusual punishment
under the American Declaration, the Petitioners indicate that in the recent
case of Knight v. Florida, Moore v.
Nebraska, 1999 U.S. LEXIS 7479, 68 U.S.W.L. 307 (November 8, 1999), the
U.S. Supreme Court refused to address the very issue of whether the U.S. Constitution
prohibits as cruel and unusual punishment the execution of prisoners who have
spent extended periods of time on death row. The Petitioners therefore suggest
that there is no effective domestic remedy available in respect of this alleged
violation.
30.
The Petitioners have recognized that the United Mexican States filed
an application for a temporary restraining order and preliminary injunction
in the U.S. District Court against the Attorney General of the State of Arizona
and others, alleging violations of, inter
alia, the Vienna Convention on Consular Relations and the International
Covenant on Civil and Political Rights. They have also confirmed that the
U.S. District Court found that it lacked subject matter jurisdiction to hear
the case, and that the United Mexican States appealed to the Ninth Circuit
Court of Appeals. The Petitioners have argued, however, that Mexicos
arguments are based on treaty obligations, which can only be advanced by states
and are not domestic remedies available to Mr. Martinez Villareal.
31.
The Petitioners have similarly recognized that motions to re-open have
been continued by the Arizona Supreme Court in respect of its orders entered
on June 9, 1986, February 9, 1989 and April 8, 1992, by which that Court may
reconsider aspects of Mr. Martinez Villareal's claims. They suggest, however,
that these proceedings are extraordinary, in that they require the hearing
of motions on which litigation has ended, and because such mandates are rarely
recalled due to a strong policy that there be an end to litigation.[2]
Further, the Petitioners argue that, even if successful, these proceedings
will not provide Mr. Martinez Villareal with effective remedies for the alleged
violations of his rights, in part because he will remain precluded from introducing
before a court objective evidence of his mental condition, and because his
due process rights will not be restored at the trial stage by permitting him
to introduce evidence that he was not competent to stand trial. Further, the
Petitioners contend that the State has not demonstrated that these remedies
will be effective to address Mr. Martinez Villareal's complaints before the
Commission.
32.
The Petitioners have also alleged more generally that there has been
an unwarranted delay in rendering final judgment on domestic remedies within
the meaning of Article 37(2)(c) of the Commission's Regulations, and for this
reason that the requirement of exhaustion should not in any event apply to
bar his case from consideration. In this regard, the Petitioners note in their
March 30, 1998 observations that as of that date, appellate proceedings had
continued for nearly 15 years with no resolution in the near future, and that
the delay was due to the failure of judicial authorities to take action in
Mr. Martinez Villareal's case in a timely manner. Evidence cited by the Petitioners
in this connection include a delay of more than two years in the Arizona Supreme
Court's determination of Mr. Martinez Villareal's appeal from his sentence
and conviction, a further delay of nearly two years in appointing another
attorney to represent Mr. Martinez Villareal following the withdrawal of his
first attorney in June 1986, and the fact that the federal habeas corpus petition
filed by Mr. Martinez Villareal in federal District Court in March 1993 was
not finally determined by the Ninth Circuit U.S. Court of Appeals until 1996.
33.
In support of their position, the Petitioners cite the decision of
the Inter-American Court of Human Rights in the Suarez
Rosero Case,[3]
in which the Court found six years to be an unwarranted length of time for
the conclusion of all proceedings in the circumstances of that case. They
also refer to the case of Myrna Mack,[4]
in which the Commission found unreasonable delay and admitted the case over
the objection of the Guatemalan government, and claim that the delays in Mr.
Martinez Villareal's case share several of the same characteristics.[5]
34.
With respect to the substance of their complaints, as indicated previously,
the Petitioners raise five principal claims in respect of Mr. Martinez Villareal's
trial, sentencing, and pending execution. In summary, the Petitioners allege
first that in its Advisory Opinion OC-16/99 of October 1, 1999, the Inter-American
Court of Human Rights determined that Article 36(1)(b) of the Vienna Convention
on Consular Relations vests an individual right in a detained foreign national
to information concerning consular assistance. The Court concluded further
that a State's failure in its obligations in this regard affects the guarantees
of due process, and that the application of the death penalty under such conditions
would constitute an arbitrary taking of an individual's life. The Petitioners
also claim that the State has not denied that it failed to provide Mr. Martinez
Villareal with notice of his rights under Article 36 of the Vienna Convention
on Consular Relations, and further allege particular prejudice in Mr. Martinez
Villareal's case, as he did not speak or understand English at the time of
his trial, was represented by counsel who was, by admission, seriously incompetent,
and was not provided with translation during his initial hearings. As a consequence,
the Petitioners allege that the State has violated Articles I, XVIII and XXVI
of the American Declaration in respect of Mr. Martinez Villareal.
35.
The Petitioners also claim that Mr. Martinez Villareal received ineffective
assistance of counsel during his criminal proceedings, contrary to Articles
I, II, XVIII and XXVI of the American Declaration. Their claim is based in
part upon the fact that his trial attorney was inexperienced and failed to
investigate Mr. Martinez Villareal's mental competence, despite prevailing
evidence that he may be mentally ill. The Petitioners also refer in this regard
to the failure of Mr. Martinez Villareal's attorney to seek a change of venue
for his trial and thereby ensure him an impartial trial, despite the publicity
and other potentially prejudicial circumstances surrounding his prosecution.
According to the Petitioners, these deficiencies in representation precluded
Mr. Martinez Villareal from raising before domestic courts his corollary claims
of mental illness or incompetence in respect of the guilt/innocence and sentencing
phases of his proceeding, also in violation of Articles I, II, XVIII and XXVI
of the American Declaration.
36.
In respect of Mr. Martinez Villareal's competency for execution, the
Petitioners allege that he has been precluded from obtaining in domestic proceedings
evidence of his mental illness in the form of a Magnetic Resonance Imaging
scan of his brain, also in violation of his due process rights under the American
Declaration. Further, the Petitioners indicate that this evidence could conclusively
show whether or not the victim is suffering from deterioration of the frontal
lobe and therefore is mentally ill and has been since birth. The Petitioners
argue in this regard that a binding norm of international law has developed
among the member states of the OAS and domestically within the United States
whereby states are obliged to refrain from executing the mentally incompetent,
and that the United States is bound by this norm.
37.
Further, the Petitioners allege that there has been unwarranted delay
in the rendering of a final decision in Mr. Martinez Villareal's case, which
in turn has led to a violation of Mr. Martinez Villareal's right to be free
from cruel, infamous or unusual punishment contrary to Articles XVIII and
XXVI of the American Declaration. The Petitioners contend in this regard that
the prolonged delay in Mr. Martinez Villareal's case is not attributable to
him, but rather to the court system in which he has been engaged.
38.
Finally, the Petitioners allege that the application of the death penalty
in circumstances in which Mr. Martinez Villareal's rights under Articles XVIII
and XXVI have been violated would violate his right to life under Article
I of the American Declaration, as well as his right to equality before the
law under Article II of the Declaration. According to the Petitioners, this
is in part because in the United States, individual states regulate whether
and the manner in which the death penalty is implemented, and therefore the
penalty is not equally applied in the United States.
B. Position of the
State
39.
With respect to the admissibility of the Petitioners' petition, the
State claims that the Petitioners have failed to exhaust domestic remedies
in accordance with Article 37 of the Commission's Regulations. In this connection,
in its December 18, 1997 observations, the State provided a detailed overview
of the history of Mr. Martinez Villareal's criminal proceedings, which included
the following observations.
40.
In May 1983, Mr. Martinez Villareal was convicted and sentenced to
death for two murders perpetrated in Arizona in October 1982. Mr. Martinez
Villareal pursued a direct appeal in respect of his convictions and sentences,
which were all affirmed by the Arizona Supreme Court in 1985. He was represented
by an attorney, William Rothstein, at these stages, as well as during his
first state and first and second federal petitions for post-conviction relief.
41.
In March 1986, Mr. Martinez Villareal filed a state post-conviction
relief, or "Rule 32", petition, asserting five claims, all relating
to his death sentences. The trial court denied the petition, ruling that all
of the claims had already been considered and ruled upon by the Arizona Supreme
Court. A motion for rehearing was denied by the trial court in May 1986.
42.
In June 1986, Mr. Martinez Villareal filed a total of three petitions
for habeas corpus in the Federal District Court.[6]
The District Court denied Mr. Martinez Villareal's first petition, with leave
to file a petition after all claims had been exhausted in state court or if
an amended petition was filed containing only claims that had been so exhausted.
Mr. Martinez Villareal's second petition, which purported to pursue allegations
raised before the state courts, contained five claims, three of which the
Court found had not been exhausted and the remaining two of which were rejected
on the merits. In respect of Mr. Martinez Villareal's third petition, which
was filed by Mr. Martinez Villareal's new counsel and alleged ineffective
assistance on the part of Mr. Rothstein, the District Court granted a stay
of execution and ordered that another petition for post-conviction relief
be filed in the state courts.
43.
Subsequently, a new attorney was appointed for Mr. Martinez Villareal
in October 1987, and an assistant for his counsel was appointed in April 1988.
In June 1988, Mr. Martinez Villareal then filed an amended petition for post-conviction
relief in the state courts alleging, inter
alia, ineffective assistance of counsel. The trial court denied the claims
in the amended petition, many of which were barred from consideration because
of procedural default, and review was denied by the Arizona Supreme Court
in February 1989, and by the U.S. Supreme Court in October 1989.
44.
In November 1990, the Arizona Supreme Court gave notice of intent to
issue a warrant of execution. Another defense attorney was subsequently appointed
for Mr. Martinez Villareal, and in February 1991, Mr. Martinez Villareal filed
a "Motion for Discover" in the U.S. District Court, which suggested
for the first time that Mr. Martinez Villareal might be mentally incompetent
to be executed. The District Court ordered that the pending habeas application
be dismissed without prejudice so that the matter could be litigated in the
state courts, and in June 1991, Mr. Martinez Villareal filed another state
petition for post-conviction relief in the Santa Cruz County Superior Court
raising approximately 31 claims. The petition was subsequently dismissed,
all but three of the claims because of previous procedural defaults, and the
remaining three because they presented nothing upon which relief could be
granted. No relief was available for the claims of mental competency for execution
because the Arizona Statutes had a special procedure for addressing claims
of this nature that Mr. Martinez Villareal never attempted to invoke. A motion
for reconsideration was denied by the trial court, the Arizona Supreme Court
denied review in April 1992, and the U.S. Supreme Court denied certiorari
later in 1992.
45.
Mr. Martinez Villareal subsequently filed an amended petition for habeas
corpus in the federal District Court, and on June 22 and 23, 1994, the District
Court held an evidentiary hearing concerning Mr. Martinez Villareal's mental
competency to be tried, sentenced and executed. Most of Mr. Martinez Villareal's
claims were rejected as either procedurally barred or meritless, specifically
finding that no facts existed at the time of trial that would have given Mr.
Martinez Villareal's trial attorney, Mr. Rothstein, or the trial court reason
to believe that Mr. Martinez Villareal was not competent to be tried. Nevertheless,
the District Court ordered a re-sentencing on the basis that Mr. Martinez
Villareal had ineffective legal representation in his sentencing hearing by
failing to adduce mitigating evidence of his mental condition. On appeal,
however, the Ninth Circuit U.S. Court of Appeals found that the District Court
erred in considering the issue of Mr. Martinez Villareal's representation,
but rather found that the District Court should have honored the previous
finding by the state courts that Mr. Martinez Villareal's claim of improper
representation was procedurally precluded because it had not been presented
in Mr. Martinez Villareal's initial Rule 32 petition with no acceptable cause
for the default. This finding was upheld on review by the full Court of Appeals.
46.
According to the State, following the proceedings described above,
the only issue left unresolved was Mr. Martinez Villareal's competence to
be executed. Following several procedural events, a hearing was held in the
Pinal County Superior Court in May 1997 to address the existence and degree
of mental retardation, mental illness or organic brain damage on the part
of Mr. Martinez Villareal. Following a four day hearing, which included testimony
from psychiatrists and psychologists, the Court found credible evidence on
both sides of the issue, but ultimately concluded that Mr. Martinez Villareal
was aware of his crime and his punishment and was competent to be executed
under the laws of the state of Arizona. The Arizona Supreme Court upheld the
Superior Courts determination and the U.S. Supreme Court denied certiorari
in May 1997. The Arizona Board of Clemency then heard two days of testimony,
including claims regarding Mr. Martinez Villareal's mental condition and effectiveness
of trial counsel, but was not persuaded that there were grounds to grant Mr.
Martinez Villareal a reprieve or commutation.
47.
Finally, the State indicates that in May 1997, Mr. Martinez Villareal
filed another habeas corpus petition in the federal District Court. The District
Court in turn found that it could not consider the petition due to amendments
to relevant statutes enacted in 1996, but on review, the Ninth Circuit U.S.
Court of Appeals reversed, construing the relevant legislation so as not to
preclude Mr. Martinez Villareal's claim, and in May 1998 the U.S. Supreme
Court upheld the Ninth Circuit's determination. As a consequence, Mr. Martinez
Villareal sought habeas review in the federal District Court of the Arizona
Supreme Court's determination on his mental competency for execution, and
the District Court rejected Mr. Martinez Villareal's claim in an August 1999
decision. The District Court concluded that the Superior Court did not err
in finding Mr. Martinez Villareal competent to be executed, and that he failed
to establish that he was denied a full and fair hearing on the issue of his
competency.
48.
In addition to the above proceedings, the State notes that Mr. Martinez
Villareal filed motions in the Arizona Supreme Court seeking to have the Court
re-open its review of Mr. Martinez Villareal's direct appeal and the three
previous state Rule 32 proceedings. The Arizona Supreme Court declined to
reopen the direct appeal, but held that the determinations of the Rule 32
petitions on June 9, 1986, February 9, 1989 and April 8, 1992 would be "continued"
until the proceedings in the federal courts were completed. The State also
indicated that Mr. Martinez Villareal filed a fourth post-conviction review
petition in the Santa Cruz Superior Court of Arizona claiming treaty violations
and changes in the law regarding the execution of mentally retarded persons,
and that in October 1997 the Court directed that the proceedings continue
with regard to all of the claims except those alleging treaty violations.
49.
The above overview indicates that the State's procedural history is
largely consistent with that provided by the Petitioners, with two principal
exceptions. First, the State claims that Mr. Martinez Villareal's fourth post-conviction
petition filed in Santa Cruz Superior Court was not, as the Petitioners suggested,
combined with the Arizona Supreme Court re-opening applications. Rather, the
State claims that this constitutes a wholly separate action that will be considered
by the superior court, and can be reviewed by the Arizona Supreme Court and
possibly by the U.S. Supreme Court. The State also contends, contrary to the
Petitioners' contentions, that the Pinal County Superior Court hearing in
1997 on Mr. Martinez Villareal's competence to be executed did not find that
the victim suffered from a mental illness, mental retardation, and/or organic
brain damage, but rather found that credible evidence had been offered on
both sides of the issue, including credible evidence negating the existence
of a legally significant mental problem. The State also argues that litigation
on this issue continues in the domestic courts as evidenced in part by the
District Court's August 1999 decision dismissing Mr. Martinez Villareal's
challenge to the Arizona Supreme Court's competency proceeding and further
possible review by the federal and Supreme Courts.
50.
The State also contends that additional state remedies remain unexhausted,
as the Arizona Supreme Court explicitly continued its consideration of whether
to re-open three prior post-conviction proceedings pending federal proceedings,
including issues of effectiveness of prior representation.
51.
In any event, the State claims that even if all remedies are exhausted,
Mr. Martinez Villareal's execution could not occur until 35 days after the
Arizona Supreme Court issues a warrant of execution.
52.
With respect to the substance of the Petitioners' contentions, the
State raises several arguments. Regarding the Petitioners' claim respecting
the Vienna Convention on Consular Relations, the State indicates that the
Vienna Convention does not vest any private rights in a criminal defendant
and therefore that reliance on this instrument by Mr. Martinez Villareal is
misplaced. It also contends that the Mexican Government was in a position
to know about the case from news media and other sources, and that Mr. Martinez
Villareal was in fact visited by someone from the Mexican consulate on the
first day of his trial.
53.
Regarding the Petitioners' claims pertaining to the fairness of Mr.
Martinez Villareal's proceedings, the State argues that the petition is manifestly
groundless because the Petitioners have failed to articulate any international
"due process" standard that has allegedly been violated, and that
the record shows that Mr. Martinez Villareal has been afforded due process
consistent with the U.S. Constitution and applicable international norms.
In relation to the Petitioners' contentions respecting Mr. Martinez Villareal's
mental state in particular, the State argues that the allegations are flawed
because they assume as true a fact which has never been proven, namely that
Mr. Martinez Villareal had mental problems around the time of his trial, which
the State claims is nothing more than unsupported extrapolation from testimony
that he may have mental problems now. Indeed, the State contends that not
even the existence of significant current problems has been satisfactorily
proved.
54.
In this regard, the State emphasizes that the Pinal County Superior
Court, after conducting the 1997 hearing concerning Mr. Martinez Villareal's
competence for execution, did not find that Mr. Martinez Villareal actually
suffered from mental illness, mental retardation, or organic brain damage,
but rather found credible evidence on both sides of the issue, including credible
evidence negating the existence of a legally-significant mental problem. Further,
with respect to the Petitioners' complaints regarding a change of venue for
Mr. Martinez Villareal's trial, the State contends that these arguments ignore
the fact that the trial court expended an entire day in the jury selection
process, and that exposure to news accounts and contacts with the families
of the victims was part of the voir
dire process which in turn has not been proved to be inadequate.
55.
With respect to the Petitioners' allegations respecting the delay in
Mr. Martinez Villareal's criminal proceedings, the State contends that such
delays are attributable to Mr. Martinez Villareal, and that in any event,
arguments that he suffered unduly from delays in his case cannot be grounded
in U.S. law. The State relies in this regard upon jurisprudence from the U.S.
courts holding that the existence of appellate delay designed to provide an
appellant with procedural safeguards does not violate fundamental human rights,
under the Sixth, Eighth or Fourteenth Amendments to the U.S. Constitution
or otherwise.
56.
The State also contends in respect of the Petitioners' alleged violations
of the right to equality under Article II of the Declaration that this demonstrates
a misunderstanding of the American legal system, as all states in the United
States that choose to utilize capital punishment are equally bound to meet
the standards for such cases established by the U.S. Supreme Court. These
include decisions applying the Fourteenth Amendment to the U.S. Constitution
respecting due process of law, and the Eighth Amendment prohibiting cruel
and unusual punishment.
IV.
ANALYSIS
A. Competence of
the Commission
57.
The Petitioners claim that the State has violated Mr. Martinez Villareal's
rights under Articles I, II, XVIII and XXVI of the American Declaration of
the Rights and Duties of Man. The State is a member state of the Organization
of American States that is not a party to the American Convention on Human
Rights, as provided for in Article 20 of the Commission's Statute and Article
51 of the Commission's Regulations, and deposited its instrument of ratification
of the OAS Charter on June 19, 1951.[7]
The events that relate to the Petitioners' claim occurred subsequent to the
States ratification of the OAS Charter. The alleged victim is a natural
person, and the petition was lodged by CEJIL, an organization authorized to
lodge petitions with the Commission under Article 26 of the Commission's Regulations.
The Commission is therefore competent to examine this petition.
B. Admissibility
of Petition
1.
Duplication of Procedures
58.
There is no information on the record indicating that the subject of
this petition is pending settlement in another procedure under an international
governmental organization of which the State is a member, or that the case
essentially duplicates a petition pending or already examined and settled
by the Commission or other international governmental organization of which
the State is a member, as provided for under Article 39 of the Commission's
Regulations.[8]
The State has not contested the issue of duplication of procedures. The Commission
therefore finds no bar to the admissibility of the petition under Article
39 of the Commission's Regulations.
2.
Exhaustion of Domestic Remedies
59.
Article 37(1) of the Commission's Regulations specifies that, in order
for a case to be admitted, remedies under domestic jurisdiction must
have been invoked and exhausted in accordance with the general principles
of international law. When domestic remedies are unavailable as a matter
of fact or law, however, the requirement that they be exhausted may be excused.
Article 37(2) of the Commission's Regulations specifies that this exception
applies if the domestic legislation of the state concerned does not afford
due process of law for protection of the right allegedly violated, if the
party alleging the violation has been denied access to domestic remedies or
prevented from exhausting them, or if there has been an unwarranted delay
in reaching a final judgment under the domestic remedies.
60.
In addition, the Inter-American Court of Human Rights has observed
that domestic remedies, in order to accord with generally recognized principles
of international law, must be both adequate, in the sense that they must be
suitable to address an infringement of a legal right, and effective, in that
they must be capable of producing the result for which they were designed.[9]
61.
Further, when a petitioner alleges that he or she is unable to prove
exhaustion, Article 37(3) of the Commissions Regulations provides that
the burden then shifts to the State to demonstrate that the remedies under
domestic law have not previously been exhausted.
62.
The observations of the Petitioners and the State respecting the procedural
history of Mr. Martinez Villareal's criminal proceedings, as outlined in Part
III of this Report, suggest the following conclusions respecting the exhaustion
of domestic remedies, in relation to each of the claims raised by the Petitioners.
63.
With respect to the Petitioners' complaints that Mr. Martinez Villareal
received ineffective assistance of counsel during the guilt/innocence and
sentencing phases of his trial, this complaint relates to the conduct of Mr.
Martinez Villareal's first attorney, who represented him during his trial,
his direct appeal, and his first two state petitions for post-conviction relief.
According to the State and the Petitioners, Mr. Martinez Villareal's concerns
respecting the effectiveness of his representation were first raised during
his third federal petition in District Court for post-conviction relief in
June 1986, and subsequently on the direction of the District Court, his June
1988 amended petition for post-conviction relief in the Arizona Superior Court.
Also according to both parties, the Superior Court rejected Mr. Martinez Villareal's
amended petition, on the basis that Mr. Martinez Villareal failed to raise
the claims in his earlier proceedings and was therefore procedurally precluded
from pursuing them. This determination was maintained by the Arizona Supreme
Court, and the U.S. Supreme Court declined to review the decision.
64.
Similarly, Mr. Martinez Villareal raised the issue of the effectiveness
of his representation in his March 1993 federal habeas corpus application
before the U.S. District Court, and the U.S. Court of Appeals for the Ninth
Circuit ultimately held that the District Court was bound to honor the state
court's preclusion finding on this issue. Consequently, Mr. Martinez Villareal
has exhausted domestic remedies in relation to this claim, or alternatively
has been prevented from pursuing remedies on procedural grounds.
65.
The parties indicate that the Arizona Supreme Court has, since September
1997, continued motions to reopen Mr. Martinez Villareal's previous state
petitions for post-conviction relief, pending the completion of federal proceedings.
However, based upon the information provided by the parties, the Commission
cannot find that these proceedings constitute effective domestic remedies
within the meaning of the Commission's Regulations and under general principles
of international law. In particular, it appears from the record that these
proceedings are of an exceptional nature, in that they require a court to
re-open a procedure that was previously completed and are rarely recalled
due to the strong policy that there be an end to litigation.[10]
Moreover, the Petitioners have alleged that these motions, even if successful,
will not provide them with the relief they seek, in part because they will
not repair the prejudice caused during Mr. Villareals trial and sentencing
proceedings, and the State has not presented information or evidence to the
contrary. These factors, together with the length of time for which these
proceedings have been pending, lead the Commission to conclude that it need
not await the outcome of these pending motions pursuant to Article 37 of its
Regulations in order to exercise its competence in the present case.
66.
With respect to the alleged failure of Mr. Martinez Villareal's attorney
to investigate his mental competence in the context of the guilt/innocence
and sentencing phases of his criminal proceeding, according to the State Mr.
Martinez Villareal was precluded from raising this issue in the context of
his June 1991 state petition for post-conviction relief, because the Arizona
statutes provided for a special procedure for addressing claims of this nature
that Mr. Martinez Villareal had never attempted to invoke. Further, while
Mr. Martinez Villareal also raised the matter in his March 1993 habeas corpus
petition before the federal District Court, as noted above the Ninth Circuit
Court of Appeals determined on appeal in 1996 that the District Court was
bound to honor the state court's preclusion findings. Consequently, as with
his claim on effectiveness of counsel, Mr. Martinez Villareal appears to have
exhausted domestic remedies in relation to this claim, or alternatively has
been prevented from pursuing domestic remedies on procedural grounds.
67.
With respect to Mr. Martinez Villareal's claim that he is mentally
incompetent to be executed, according to the parties this claim has also been
the subject of proceedings in the state and federal courts. In particular,
according to the State, after a four day hearing in May 1997, the Pinal County
Superior Court of Arizona found credible evidence on both sides of the issue
but ultimately concluded that Mr. Martinez Villareal was competent to be executed.
This decision was upheld in the Arizona Supreme Court and the U.S. Supreme
Court ultimately denied review. The record further indicates that the Arizona
state courts findings on Mr. Martinez Villareal's competence to be executed
were also the subject of review proceedings before the U.S. District Court,
which in an August 1999 decision ultimately confirmed the findings of the
state courts on this issue. The record therefore indicates that Mr. Martinez
Villareal has exhausted domestic remedies regarding his competence to be executed.
68.
Moreover, according to the information available at this stage, Mr.
Martinez Villareal was denied the ability during his Arizona Superior Court
hearing in April and May 1997 to obtain and adduce evidence of a Magnetic
Resonance Imaging scan of his brain, which he claims will constitute significant
evidence pertaining to his mental competence to be executed. The information
also indicates that Mr. Martinez Villareal has unsuccessfully pursued habeas
corpus petitions respecting this matter, such that no effective domestic remedies
remain available.
69.
In relation to Mr. Martinez Villareal's complaint regarding Article
36 of the Vienna Convention on Consular Relations, the Petitioners note that
the State's position, generally and in the context of the request for Advisory
Opinion OC-16 before the Inter-American Court of Human Rights, has been that
Article 36 of the Vienna Convention does not vest any rights in a detained
foreign national, and that the State has demonstrated through practice that
it will not recognize such a right, nor provide a remedy for its violation.
The State confirmed this position in its observations, and has not contested
nor demonstrated the existence of effective domestic remedies in respect of
this aspect of the Petitioners' petition. The Commission therefore concludes
that the Petitioners' claim respecting the State's failure to comply with
Article 36 of the Vienna Convention on Consular Relations is not precluded
by Article 37 of the Commission's Regulations.
70.
With respect to the Petitioners allegation that the delay in Mr. Martinez
Villareal's criminal proceedings constitutes cruel, infamous or unusual punishment
contrary to Articles XVIII and XXVI of the American Declaration, the Petitioners
claim that no effective remedies exist with respect to such claims under existing
domestic jurisprudence. In this regard, the Petitioners refer to the dismissal
by the U.S. Supreme Court in November 1999 of applications for writs of certiorari
in the cases Knight v. Florida and
Moore v. Nebraska,[11]
in which the applicants raised the very question of whether the U.S. Constitution
prohibits as cruel and unusual punishment the execution of prisoners who have
spent nearly 20 years or more on death row. In its observations, the State
has confirmed the status of U.S. law in this regard, stating that arguments
that a condemned prisoner has suffered unduly from delays in his or her case
cannot be grounded in U.S. law. Based upon this information, therefore, the
Commission finds that any proceedings raising these claims before domestic
courts would appear to have no reasonable prospect of success, would not be
effective in accordance with general principles of international law, and
accordingly need not be exhausted in accordance with Article 37 of the Commissions
Regulations.[12]
71.
Finally, in respect of the Petitioners' contention that the death penalty
is applied in the United States in a manner inconsistent with Mr. Martinez
Villareals right to equal protection of the law under Article II of
the American Declaration, the Petitioners have suggested that no effective
domestic remedies exist in relation to this allegation, but rather have indicated
that the State has failed to remedy a similar violation determined by the
Commission in its decision in the Roach
and Pinkerton Case.[13]
The State has not specifically contested the admissibility of this aspect
of the Petitioners' case, but has only contended that this argument demonstrates
a profound misunderstanding of the American legal system. Consequently, the
Commission considers that the Petitioners' complaint is not barred by the
requirement of exhaustion of domestic remedies in this respect.
72.
Based upon the information presented, the Commission therefore finds
that the Petitioners' claims, as articulated above, are not barred from consideration
under Article 37 of the Commission's Regulations.
3.
Timeliness of the Petition
73.
In accordance with Article 38(1) of the Commission's Regulations, the
Commission must refrain from taking up petitions that are lodged after the
six month period following the date on which the complaining party has been
notified of the final ruling, in cases where the remedies under domestic law
have been exhausted.
74.
In the present case, the Petitioners' petition was not lodged beyond
six months from the date on which Mr. Martinez Villareal was notified of any
of the final rulings on the issues raised before the Commission in his case,
in those instances in which domestic remedies were available. The State has
not specifically contested the timeliness of the Petitioners' petition. Consequently,
the Commission concludes that the Petitioners' petition is not barred from
consideration under Article 38 of the Commission's Regulations.
4.
Colorable Claim
75.
Article 41(c) of the Commission's Regulations requires the Commission
to declare inadmissible any petition when the petition is manifestly groundless
or inadmissible on the basis of a statement by the petitioners or the government.
76.
The Commission has outlined in Part III of this Report the substantive
allegations of the Petitioners, as well as the State's responses to those
allegations. After carefully reviewing the extensive and complex information
and arguments provided by the parties on the matters raised in this case,
and in light of the heightened scrutiny test applied by the Commission in
capital punishment cases,[14]
the Commission does not find the Petitioners' allegations to be manifestly
groundless or inadmissible. Accordingly, the Commission concludes that the
Petitioners' petition is not inadmissible under Article 41(c) of the Commission's
Regulations.
V. CONCLUSIONS
77.
The Commission concludes that it has the competence to examine the
Petitioners' allegations, and that the petition is admissible in accordance
with the Commission's Regulations.
78.
On the basis of the findings of fact and law set forth above, and without
prejudging the merits of the matter,
THE INTER-AMERICAN COMMISSION
ON HUMAN RIGHTS,
DECIDES
TO:
1. Declare the present
case admissible, in respect of Articles I, II, XVIII and XXVI of the American
Declaration.
2.
Transmit this Report to the Parties.
3.
Continue with the analysis of the merits of the case.
4. Publish this
Report and include it in its Annual Report to the General Assembly of the
Organization of American States.
Done and signed in the city of Washington, D.C., on the 4th day of the month of December, 2000. (Signed): Prof. Hélio Bicudo, Chairman; Dean Claudio Grossman, First Vice-Chairman; Dr. Peter Laurie, Dr. Julio Prado Vallejo, Commissioners.
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*
Commission Member Professor Robert Goldman did not take part in the discussion
and voting on this case, pursuant to Article 19(2) of the Commission's
Regulations.
[1]
Article 36 of the Vienna Convention
on Consular Relations provides as follows:
1.
With a view to facilitating the exercise of consular functions
relating to nationals of the sending State:
(a)
consular officers shall be free to communicate with nationals of
the sending State and to have access to them. Nationals of the sending
State shall have the same freedom with respect to communication with and
access to consular officers of the sending State;
(b)
if he so requests, the competent authorities of the receiving State
shall, without delay, inform the consular post of the sending State if,
within its consular district, a national of that State is arrested or
committed to prison or to custody pending trial or is detained in any
other manner. Any communication addressed to the consular post by the
person arrested, in prison, custody or detention shall also be forwarded
by the said authorities without delay. The said authorities shall inform
the person concerned without delay of his rights under this sub-paragraph;
(c)
consular officers shall have the right to visit a national of the
sending State who is in prison, custody or detention, to converse and
correspond with him and to arrange for his legal representation. They
shall also have the right to visit any national of the sending State who
is in prison, custody or detention in their district in pursuance of a
judgment. Nevertheless, consular officers shall refrain from taking action
on behalf of a national who is in prison, custody or detention if he expressly
opposes such action.
2.
The rights referred to in paragraph 1 of this Article shall
be exercised in conformity with the laws and regulations of the receiving
State, subject to the proviso,
however, that the laws and regulations must enable full effect to be given
to the purposes for which the rights accorded under this Article are intended.
[2]
Petitioner's July 8, 1997 observations, para. 5.2, citing Federal Appellate Practice Guide, Ninth Circuit, Section 9.18
at 9-44 (1994); State's May 20, 1997 response to Combined Motion to Recall
Mandate, Vacate Prior Orders Denying Review, and Requesting Stay of Execution.
[3]
I/A Court H.R., Suarez Rosero Case,
Judgment, 12 November 1997.
[4]
Report No. 10/96 (Myrna Mack v.
Guatemala), Annual Report of the IACHR 1995.
[5]
In their March 30, 1998 observations, the Petitioners refer to several
factors in the Myrna Mack Case, including the fact that the proceedings
had remained inactive for almost one year due to failure to appoint opposing
counsel, that the proceedings continued for six years which was found
to be unwarranted given the facts of the case, that there was no indication
that a resolution was coming in respect of pending actions, and that it
was reasonable to expect that, in light of the way that previous proceedings
had developed, the pending proceeding would not achieve an affirmative
result.
[6]
According to the State's observations, a habeas corpus petition is a special
petition that an individual can file to challenge the constitutionality
of his or her sentence or incarceration.
[7]
The Inter-American Court of Human Rights and this Commission have previously
determined that the American Declaration of the Rights and Duties of Man
is a source of international obligation for the United States and other
OAS member states that are not parties to the American Convention on Human
Rights, as a consequence of Articles 3, 16, 51, 112, and 150 of the OAS
Charter. See I/A Court H.R.,
Advisory Opinion OC-10/89 Interpretation
of the American Declaration of the Rights and Duties of Man Within the
Framework of Article 64 of the American Convention on Human Rights,
July 14, 1989, Ser. A No. 10 (1989), paras. 35-45; Res. 3/87 (Roach
and Pinkerton v. US), Annual
Report of the IACHR 1986-87, paras. 46-49. See
also Statute of the Inter-American Commission on Human Rights, Art.
20.
[8]
Article 39(1) of the Commission's Regulations provides: "The Commission
shall not consider a petition in cases where the subject of the petition:
a) is pending settlement in another procedure under an international governmental
organization of which the State concerned is a member; b) essentially
duplicates a petition pending or already examined and settled by the Commission
or by another international governmental organization of which the state
concerned is a member."
[9]
I/A Court H.R., Velásquez Rodríguez
Case, Merits, Judgment of July 29, 1988, Ser. C No. 4, (1988), paras. 64-66.
[10]
See similarly Eur. Comm. H.R.,
X and Church of Scientology v. Sweden, 7805/77, May 5, 1979, 16 D.R. 68
(observing that a procedure which is directed towards a re-opening of
a case or a re-trial of its merits is not normally a remedy which need
be exhausted for the purposes of the European Convention); G. v. United
Kingdom, 11932/86, May 9, 1988, 56 D.R. 199 (considering that the possibility
of requesting an authority to reconsider a decision taken by it will not
generally constitute an effective remedy for the purposes of Article 26
of the European Convention); Karaduman v. Turkey, 16278/90, (Dec.) May
3, 1993, 74 D.R. 93 (finding that a request for a court to reconsider
a previous judgment was not an effective remedy that required exhaustion
in the circumstances of the petitioner's complaint).
[11]
Knight v. Florida and Moore
v. Nebraska, 1999 U.S. West Law 7479; 68 U.S.L.W. 3307 (U.S. Sup.
Ct., 8 November 1999).
[12]
See similarly Report No. 51/00
(Graham v. US), June 15, 2000 (IACHR), para. 60; Eur. Court H.R., De Wilde, Oomas and Versyp Cases, June 10, 1971, Publ. E.C.H.R. Ser.
A, Vol.12, p. 34, paras. 37, 62 (suggesting that domestic remedies need
not be exhausted in circumstances in which an applicant believes that
there is no reasonable chance of success and where that doubt is supported
by the jurisprudence of the state's highest court); Eur. Court H.R., Avan
Oosterwijck v. Belgium, Judgment (Preliminary Objections), November
6, 1980, Case No. 7654/76, para. 37.
[13]
Roach and Pinkerton v. US, supra.
[14]
According
to the Commission's established jurisprudence, it will review and decide
capital punishment cases with a heightened level of scrutiny, to ensure
that any deprivation of life that an OAS member state proposes to perpetrate
through the death penalty complies strictly with the requirements of the
applicable inter-American human rights instruments. See
Report No. 57/96 (Andrews v. United States), Annual Report of the
IACHR 1997, paras. 170-171; Report No. 38/00 (Baptiste v. Grenada), Annual
Report of the IACHR 1999, paras. 64-66; Report No. 41/00 (McKenzie et
al. v. Jamaica), Annual Report of the IACHR 1999, paras. 169-171.